Key Supreme Court judgment concerning homelessness and the enforcement of statutory duties: Croydon LBC v Imam (Crisis intervening) [2023] UKSC 45

Introduction

In Croydon LBC v Imam (Crisis intervening) [2023] UKSC 45, the Supreme Court was asked to consider the approach to be taken by the High Court when faced with an application for an injunction to compel compliance with the duty in s.193(2) of the Housing Act 1996 (the “full” or “main” housing duty). Justin Bates, Harriet Wakeman and Barney McCay acted for Crisis, instructed by Giles Peaker at Anthony Gold solicitors. Judgment was handed down on 28 November 2023. This is an important judgment in the housing context. More generally, it is also important in terms of when mandatory orders can be made to enforce statutory duties and the scrutiny that should be applied to an assertion that it would be “impossible” to comply with a statutory duty.

Background

Where a person applies to a local authority in England for homelessness support and the authority determines that they are eligible for assistance (referable to immigration status), homeless, in priority need and that they did not intentionally become homeless, then the authority must secure suitable accommodation for them (s.193(2)). It has previously been held by the courts that (a) this is an “immediate” and “non-deferrable” duty (see R (Elkundi) v Birmingham [2022] EWCA Civ 601) and (b) a person who is owed the s.193(2) duty, but who is not provided with any accommodation or with any suitable accommodation, may seek an injunction from the High Court to compel compliance with that duty.

The proceedings in the High Court and Court of Appeal

Ms Imam was a wheelchair user with three children. She was homeless and, in 2014, applied to Croydon LBC for support under the homelessness legislation (Part 7, Housing Act 1996). The authority decided that she was owed the s.193(2) duty and provided her with some accommodation, albeit accommodation which it accepted was not “suitable”.

Ms Imam brought a claim for judicial review and sought a mandatory order requiring the authority to secure suitable accommodation for her and her family. The High Court rejected her claim; the Deputy Judge accepted that the budgetary pressures on the authority were so acute that they provided a valid excuse for failure to provide suitable accommodation.

Ms Imam successfully appealed to the Court of Appeal. The Court held that where the authority was in breach of statutory duty, it was for the authority to show why a mandatory order should not be made. References to general budgetary pressures were not sufficient to prevent a mandatory order from being granted and detailed evidence was necessary to persuade the courts not to grant such an order (which had not been provided by Croydon LBC in this case).

Croydon LBC appealed to the Supreme Court. Given that the judgment had the potential to affect hundreds of thousands of homeless households, Crisis were permitted to intervene to address the wider consequences of the argument advanced by Croydon LBC.

The Supreme Court’s judgment

The Supreme Court dismissed an appeal by the Croydon LBC. It considered that Parliament had imposed the s.193(2) duty without any reference to resources. It would undermine that duty if the courts were to permit routine breaches of the duty by reference to generalised claims relating to insufficient resources. Such duties were imposed by Parliament on the assumption that an authority would comply and would find the resources. The courts should not undermine that statutory purpose by accepting vague or unparticularised excuses or evidence.

Where an authority was in breach of the s.193(2) duty, it was for the authority to explain why a mandatory order should not be made in order to compel the authority to comply with the law. That evidence needed to be detailed and, for example, deal with what adapted properties were available to Croydon LBC, even if presently ear-marked for some other purpose (e.g. for allocation via the housing waiting list under Part 6, Housing Act 1996).

That is not to say that a mandatory order would always be appropriate. Remedies in public law were discretionary and the courts lacked the democratic foundation to re-allocate resources within public authority budgets.

Crucially, the Supreme Court identified five factors of general importance to aid High Court judges in such cases:

(a) First, does the local authority have any contingency fund, even if not earmarked for this particular purpose?

(b) Secondly, how long has the breach of statutory duty been continuing? A court must not encourage a decision to act in breach of a statutory duty.

(c) Thirdly, how is the breach affecting the claimant?

(d) Fourthly, is the authority taking steps to remedy the breach?

(e) Finally, the court must be careful not to give the claimant undue priority over others who may have an equal or better claim to support under the statutory scheme.

The case was remitted to the High Court for the parties to lead evidence and present argument on these factors.

Comment

The judgment will have significant implications for local authorities’ duties under the Housing Act 1996 and the enforcement of public law duties more generally.

The key takeaway for housing practitioners is that where an authority is found to have breached the “full” housing duty in s. 193(2) of the Housing Act 1996, the local authority must explain why a mandatory order should not be made in order to compel the authority to comply with the law. Following Imam, local authorities will need to provide detailed evidence in order to persuade the courts not to grant a mandatory order in these circumstances. Generic and unparticularised claims about budgetary pressures are now unlikely to be sufficient to resist a mandatory order.

In terms of the implications of the judgment for public law practitioners more generally, we anticipate that this judgment will impact cases far beyond the homelessness sphere: the five factors set out by the Supreme Court (and summarised above) are now likely to be of relevance in a wide range of other public law contexts where a judge is asked to determine whether or not to grant a mandatory order.

This article was written by Justin Bates, Harriet Wakeman and Barney McCay.